¶1 (concurring).
¶2 I concur with the result and generally with the reasoning of the prevailing opinion. The doubtful questions presented, as I see them, are slightly different from those emphasized in the prevailing opinion and are: Did the decedent deliver the deeds to respondent? If so, did she thereby intend to immediately pass title to the property described in the deeds? Respondent is entitled to succeed only if both of those questions are resolved in the affirmative. I think there is evidence which strongly tends to establish the negative of both of these propositions but that it preponderates the other way. The prevailing opinion poses the question whether she intended an “irrevocable delivery of the deeds,” whether she delivered the deeds “with the intention of absolutely dispossessing herself of them,” and whether the delivery was “with the intention of completely and irrevocably divesting herself of all control and dominion over them.” I see little doubt that if she delivered the deeds at all she did not intend to get them back. But I see grave doubt that she delivered the deeds to the husband at all, and equally grave *73 doubt that she intended to thereby immediately and irrevocably pass title.
¶3 I agree that the husband’s interest in his wife’s property is not such an interest as to bring him within the exclusion provision of the dead man’s statute. But in evaluating his testimony as to what happened between him and the decedent, we must keep in mind
“that a wife (and sometimes a husband) … is often a great help to a claimant.” See forward to Model Code of Evidence by Edmond M. Morgan.
¶4 The circumstances testified to surrounding the delivery of these deeds and all the details connected therewith seem to me to be very unusual and while I do not think that his testimony should be excluded, any more than I agree with the policy of the Dead Man’s Statute, I do think, if we are to reach the correct result in cases of this kind we must keep in mind that he is in an indirect way vitally interested in the result of this action. He is not only interested in the possibility of inheriting from his wife, but he is also interested in his wife and the mother, of his children owning property. If he fabricated his story he did so knowing that there was no person living to contradict it. Under those circumstances the temptation to not tell the truth is often beyond the capacity of some people to resist. While I believe that the preponderance of the evidence is with the facts as found by the court, still, in view of his interest in the outcome of this case and the unusual details of his story, I reach that conclusion largely in spite of his testimony and not necessarily because of it.